IN THE CASE OF:	  

		BOARD DATE:	  1 October 2013

		DOCKET NUMBER:  AR20120022749 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to show he was retired due to physical disability.

2.  The applicant states that he hates to ask for benefits, or worse, the appearance that he is a fancy well off lawyer, who had an easy job in the Army and is trying to milk the system.  He does not intend (too much) to play the “violin” for sympathy; but wants to go into his background because he thinks it explains why he did not fight the physical evaluation board (PEB) decision.  He also wants to explain his fear of advocating for himself, the origin of diagnoses, and why he took so long to make this request.

	a.  From 1995-1999, he was a volunteer firefighter in New York.  After 
11 September 2001, he felt compelled to serve.  He joined the Army in December 2002.  He was given a direct commission.  The Army did not pay for his schooling.  He started out as one of the lowest paid officers/lawyers who also had a significant student debt.  He received a 3-week familiarization course, military training for lawyers, and a couple of hours firing a weapon.

	b.  He volunteered for the 4th Infantry Division which was preparing to invade Iraq.  He deployed to Iraq in May 2003.  In Iraq, he did countless missions, working 18 to 20 hours every day, wearing full gear, traveling in the Sunni Triangle in extreme weather, sleeping in morgues, tents and with sand fleas, rebuilding courthouses, police stations, and negotiating with Iraqi leaders.  They were attacked often.  There were constant mortars, rockets, and small arms fire.  
	c.  They made life and death decisions.  He was responsible for Soldiers' and civilians' deaths and witnessed much death and destruction, just as anyone else. Six months into deployment, his mind and body had enough.  He began suffering from severe gastroesophageal reflux disease, the first diagnosis (DX1) on his medical evaluation board (MEB) and PEB.  The icing on the cake came in November 2003 when many Soldiers died.  He witnessed the death of a close family friend.  Landing at his forward operating base, his helicopter was shot down.  His Soldiers recovered the body parts and his camera captured his last moments.  Emotionally, he has not recovered.  The physical symptoms of the stress aggravated his medical condition.  The doctor at Fort Carson, Colorado, determined that the origin of his DX1 was in 2003.  The doctor who wrote the narrative summary and the DA Form 3947 (MEB Proceedings), also indicated 2003 was the date of origin of his DX1.  Accordingly, the MEB doctors found that his unfitting condition did not exist prior to service, but rather, that it occurred during service and was permanently aggravated.

	d.  The Department of Veterans Affairs (VA) granted service connection for the DX1 condition.  However, the PEB concluded that the DX1 existed prior to service and was not permanently aggravated.  The MEB’s decision is supported by medical evidence and should not have been overturned by the PEB.  The PEB did not cite any reason for contradicting the MEB, or the presumption that he was fit when he entered the Army, or the express MEB finding of permanent aggravation.

	e.  The behavioral health part of his MEB is nonexistent.  In 2006, at Fort Carson, this was common.  He complained of significant stress affecting his DX1 issue to the MEB; however, there was no further analysis.  He wishes that he had the “nerve” to see behavioral health.  He felt there would be a stigma attached to his seeing behavioral health that would have ruined his career or hurt his ability to be an attorney.  He also was concerned about the many allegations raised by Soldiers at Fort Carson who were diagnosed with personality disorders, or had other preexisting conditions and were separated without benefits.  He also had personal issues with the head of Psychiatry, who testified often as a government witness against his clients and often dismissed the effects of post-traumatic stress disorder (PTSD).

	f.  His son has serious medical issues undiagnosed by the Army.  He (the applicant) was motivated to get out of the Army as soon as possible so as to relieve the stress and to be able to care for his family.  So, although the PEB entirely contradicted the MEB, and mental health was not raised, he agreed with everything.  His family and finances are in ruin due to student loans, medical expenses, and financial apathy from PTSD and depression.  Six years later, this has led him to humbly asking for the benefits he thinks are appropriate.  
	g.  He thinks the PEB improperly disregarded the MEB and the expert doctor. He thinks a review will show his DX1 medical condition should be found to have occurred while entitled to base pay and that it has significantly impacted his life.  The 30 percent VA Schedule for Rating Disabilities (VASRD) rating best represents his disability.  PTSD should also be considered and is appropriately rated at 30 to 50 percent under the VASRD.  He was a proud college athlete who was broken by war, and ashamed by defeat.  He feels he failed the Army and his family.  A review of his discharge and an outcome allowing him to retire would be a big boost to his morale.  The medical benefits for his son are priceless.  He requests a hearing in person to address any concerns.  However, if this informal memorandum and attachments are enough to grant a retirement at any rating, he is pleased to waive a formal hearing.

3.  The applicant provides copies of:

* MEB Consultation, dated 15 February 2006
* MEB Narrative Summary, dated 27 April 2006
* DA Form 3947, dated 2 May 2006
* DA Form 199 (PEB Proceedings), dated 18 May 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 17 February 2009, with enclosures
* VA Rating Decision, dated 30 September 2009 (4 pages)
* VA Medical Center Progress Notes, dated in July and October 2012
* Westlaw Cites
* Medline Plus Medical Encyclopedia entry for hiatal hernia

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Orders A-12-29056, U.S. Total Army Personnel Command, dated 
5 December 2002, ordered the applicant to active duty as a first lieutenant, Judge Advocate General's (JAG) Corps, U.S. Army Reserve, with a report date of 11 May 2003.

3.  The applicant was promoted to captain, pay grade O-3 with an effective date and a date of rank of 23 May 2003.  He served in Kuwait/Iraq from 15 May 2003 to 15 March 2004.

4.  Orders 60-5-A-83, U.S. Army Human Resources Command, dated 
11 November 2005, announced the applicant's Regular Army appointment effective the date of the orders.

5.  An MEB consultation, dated 15 February 2006, states the applicant's chief complaint was gastroesophageal reflux.  The applicant had indicated he had a history of this medical condition since about 19 years of age.  When he was in college and law school, he had periodic heartburn when under the stress of taking exams.  He took over-the-counter antacids.  Nothing stronger was needed. The physician determined that the applicant now had a significant gastroesophageal reflux and had been placed on omeprazole and other proton pump inhibitors at a double dose therapy.  In addition, he had been given supplemental Zantac and trials of Reglan and Zelnorm for acid reflux.  The physician recommended the applicant be placed on a permanent (P3) physical profile and considered by an MEB and termination from the service because it was unlikely his condition would improve.  He was not able to do physical fitness and was not world-wide deployable.  He was on maximal medical therapy and would at some point need to be considered for complicated lap nissen and possibly drainage procedure of the stomach.

6.  An MEB narrative summary, dated 27 April 2006, provided the following:

	a.  The applicant's chief complaint was constant reflux.

	b.  He was on prilosec, Zelnorm, and Zantac.  He also used Rolaids or Tums. He denied any significant side effects from his medications.  He felt he had made about 70 to 80 percent improvement with his therapy in part due to his not having to do any heavy physical training.

	c.  His entrance physical examination was negative for any gastrointestinal disease or acid reflux conditions.

	d.  He continued to perform his JAG duties but was unable to be deployed, which he stated was a primary function of a JAG officer.

	e.  The applicant was diagnosed as failing to meet retention standards due to having a severe gastroesophageal reflux disease refractory to maximal medical therapy and associated with high reflux and symptoms that worsen his exercise performance during physical fitness.  He was also diagnosed with having idiopathic gastro paresis, exercise-induced shortness of breath related to his high gastroesophageal reflux, dyslipidemia, and borderline to mild hypertension.

	f.  The applicant's physical profile of 3 - 1 - 1 - 1 - 1 - 1 only permitted him to carry and fire an individually-assigned weapon and to wear a protective mask and chemical defense equipment.  He was prohibited from performing the two-mile run, sit-ups, push-ups, or running.  He was permitted the alternative walk test, and to bike and swim at own pace and distance.  No lifting over 20 pounds and no deployment.

7.  On 2 May 2006, an MEB convened to evaluate the applicant's medical conditions.  The applicant did not present views on his own behalf.

	a.  The MEB diagnosed him with severe gastroesophageal reflux disease refractory to maximal medical therapy and associated with high reflux and symptoms that worsen his exercise performance during physical fitness.  The approximate date of origin was listed as 2003.  It was determined to have been incurred while he was entitled to basic pay and had been permanently aggravated by service.  It further determined that it did not exist prior to service.

	b.  The MEB diagnosed the following conditions which did not cause the applicant to fall below retention standards:

* Idiopathic gastro paresis
* Exercise induced shortness of breath related to his high gastroesophageal reflux
* Dyslipidemia

	c.  The MEB referred the applicant to a PEB.

	d.  The applicant indicated he did not desire to continue on active duty.

	e.  On 3 May 2006, the findings and recommendations of the MEB were approved.

	f.  On 4 May 2006, the applicant indicated his agreement with the MEB findings and recommendation.

8.  On 10 May 2006, an informal PEB convened to consider the applicant's medical conditions.  The PEB found the applicant unfit due to chronic esophagitis with hiatal hernia, chronic reflux into the esophagus and delayed gastric emptying time of undetermined etiology.

	a.  This condition existed prior to his basic active service date of 5 January 2003, has followed a course of normal progression without permanent service aggravation according to accepted medical principles.  Symptoms are only partially relieved by therapy.  Applicant was unable to tolerate field conditions due to his condition.

	b.  His medical condition was identified under VSARD code 7399/7346.  The PEB did not assign a disability rating to his condition.  The PEB determined that his functional limitations in maintaining the appropriate level of stamina, caused by the physical impairments recorded therein, made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.

	c.  His unfitting condition was found to be neither service incurred nor permanently aggravated by military service.  His impairment originated while he was not entitled to basic pay, and has increased only to the extent of its accepted normal and natural progress.  Therefore, there is no service aggravation.  Because his condition was not service incurred or permanently aggravated, he was ineligible for disability compensation and was therefore separated without disability benefits.

9.  On 18 May 2006, the applicant indicated his concurrence with the informal PEB proceedings and waived a formal hearing of his case.  The PEB liaison officer indicated that he advised the applicant about the findings and recommendations of the PEB and his rights pertaining thereto.

10.  On 4 July 2006, the applicant was discharged due to physical disability, existed prior to service.  He had attained the rank of captain, pay grade O-3, and had completed 3 years, 6 months, and 12 days of creditable active duty service.

11.  A VA Progress Note, printed on 25 August 2008, states in part, “First problems probably go back to childhood.  ‘To a certain extent, I’ve always had some anxiety.  I’ve always had heartburn in the chest when stressed.’”

12.  A VA Rating Decision, dated 30 September 2009, states:

	a.  he was granted a 10 percent service-connected disability rating for right shoulder rhomboid strain;
	b.  his service medical records for the period 23 December 2002 through
4 July 2006, do not show any complaints of, treatment for, or diagnosis of PTSD;

	c.  his VA Form 21-0781 received by the VA on 19 February 2009 noted a specific casualty that when verified, supported the stressor for PTSD; and

	d.  he was granted a 30 percent service-connected disability rating for PTSD effective 4 December 2008 based on his recurrent distressing dreams, intense psychological distress at exposure to internal and external cues, difficulty concentrating, hypervigilance and exaggerated startle response.  Additionally, there was a medical opinion that his PTSD was the result of his combat experiences.

13.  The applicant's service medical records were not available for review.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code (USC), Chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  The objectives of this regulation are:

* to maintain an effective and fit military organization with maximum use of available manpower
* to provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability
* to provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected

	b.  provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	c.  Appendix B of this regulation states the VASRD provides that conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness.  
15.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

16.  Title 38, USC, chapter 11, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he was retired due to physical disability because the MEB stated his medical condition was incurred while he was on active duty.

2.  The available evidence clearly shows that the applicant admitted his DX1 medical condition began while he was 19 years of age and in college.  A VA Progress Note dated 2008 indicates that it may have started even earlier.  The MEB clearly, but incorrectly, determined that this medical condition was incurred while he was on active duty in 2003.  However, the PEB determined from the available evidence that his condition existed prior to his service.  The applicant's contention that the PEB had improperly disregarded the expert doctor's opinion in the MEB is without merit.

3.  The PEB determined that the applicant's medical condition had progressed normally and was not permanently aggravated by military service.  Accordingly, he was not entitled to receive disability benefits for his condition.

4.  The available evidence shows that the applicant did not desire to continue on active duty.  He agreed with the findings of the PEB and waived his opportunity to have his case presented to a formal PEB.  His arguments now concerning how he was worried about the stigma of going to behavioral health and a personality 

conflict with the psychiatrist are little more than retrospective thoughts.  He has not provided any documentary evidence showing that what was done resulted in an error or injustice.  He has not provided sufficient documentation showing that his subsequent family and financial difficulties are due to anything the Army should have done, but did not do.

5.  There is no evidence of record showing that the applicant suffered from PTSD while on active duty.  Furthermore, there is no evidence showing that even if he did suffer from PTSD, that it was an unfitting condition.

6.  Although the applicant's service medical records were not available for review, the VA clearly stated in their rating decision that his service medical records did not show any complaints of, treatment for, or diagnosis of PTSD.

7.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (service-connected), and affects the individual's civilian employability and/or social functioning.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

8.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 

are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



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